Criminal justice reform is treated across these episodes of The Bob Zadek Show as an area in which the federal government holds the power to deprive people of liberty and property, and in which the states are the units actually producing change. The topic surfaces in discussions of the drug war, sex offender registries, mens rea, bail, and the First Step Act, and it is repeatedly described as transcending ordinary party lines.
The drug war and punitive sentencing
In a 2017 episode, guest Austin Petersen, then a candidate, told caller Jacob that tension in inner cities between citizens and police has a lot to do with an overly punitive criminal justice system that he said is perceived to be biased against people of color and minorities, especially in Missouri, and he said he agreed with that perception Federalism and the Flat Tax: The Austin Petersen Plan (2017). He called the federal war on drugs a prohibitionist bloody war on our own people, expensive and an absolute waste of life and time, and argued that drugs should be treated as a medical problem, not a criminal problem. He advocated a total end to the federal war on drugs, and said that because drugs cannot be kept out of prisons, they cannot be kept out of the United States. He also criticized mandatory minimum jail sentences even for non-violent crimes, and contrasted being gunned down in the street for selling a pound of marijuana with becoming a millionaire in Colorado or Washington. He said the inconsistency in policies toward these chemicals was a reason for reform, and noted that because the drugs are illegal, proper testing cannot be done; he cited a study suggesting MDMA may help people suffering from PTSD.
On the Michael Brown incident, Petersen said that whether Michael Brown was innocent or guilty was irrelevant, because the aftermath and backlash were the straw that broke the camel’s back, with tension that had brewed and bubbled turning into full-blown aggressiveness because people feel they are not getting a fair shake from their government. He said criminal justice reform would give people in urban communities more trust in their government, that minorities currently have no faith or trust in government, and that he was campaigning on the issue in his Senate race. Bob Zadek responded that Petersen would help Senator Paul and Senator Booker in that regard, and later said Petersen would help Senator Paul and Cory Booker and others where help is needed on rationalizing what he called this insane criminal justice system. Caller Eben praised a book by a former judge from conservative Orange County titled Our Drug Laws Have Failed and What We Can Do About It, and mentioned Sir Richard Branson and the Global Commission on Drug Policy in Switzerland and what has been done in Portugal; Zadek identified the judge as the Libertarian Party’s vice-presidential candidate in the 2012 election and a past guest.
Federalism and state-level reform
A later 2017 episode with Robert Alt, chief executive officer of the Buckeye Institute, framed criminal justice reform as part of a broader revival of federalism. Zadek opened by celebrating the publication of the first Federalist Paper in 1788, arguing that the Federalist Papers were written to persuade rather than to educate and should be taken with a grain of salt, and lamenting the concentration of power in the federal government at the expense of states and localities Robert Alt of the Buckeye Institute: Power to the States (2017). He said Washington has shown itself ungovernable and that the interesting legislative initiatives and progress are happening at the states, listing marijuana reform, rejection of Medicaid by some states, criminal justice reform, and right-to-work laws. He described the Buckeye Institute as operating out of Ohio with national influence, and introduced Alt as its CEO since 2012, founder of its Economic Research Center, a former director of the Center for Legal and Judicial Studies, and a former official under US Attorney General Edwin Meese.
Alt agreed that meaningful reforms could not get done in Washington but could in the states. Zadek said the founders worried that a federalist system with co-equal branches at the federal and state level could not work in a very large country, and that he saw no short-term hope for sound legislation out of Washington. He said the Buckeye Institute had been a national leader in criminal justice reform, and that the subject transcends typical party positions, pointing to the allegiance of Senator Rand Paul and Senator Cory Booker, a Republican libertarian and a Democrat, who had a lot of common ground but did not get very far because Washington paid attention to terrorist activities and cannot focus on more than one issue at a time. He said criminal justice reform hopes at the national level simply disappeared, at least for the minute, but not at the state level. The episode’s overview lists mens rea and bail reform among the criminal justice issues discussed, alongside union democracy and regular recertification elections for public sector unions.
Registries and recidivism
In a 2018 conversation with Lenore Skenazy, Zadek described sex offender registries as an abuse of statutes that deprive otherwise regular citizens of a normal life, perhaps forever, often for a mistake made by a young pre-legal adult A Sunday Morning Chat with The World’s Worst Mom (2018). He traced a sequence: a non-existent fear created around protection of children, a police tool that seemed sensible when created, the registry becoming public because of a single criminal event, and states falling over themselves to make it more and more restrictive and punitive. He said almost a million individuals are deprived of rights that everyone listening takes for granted, and asked where the proportionality is and whether there is any proof that damage to the individual solves the problem.
Skenazy said an enormous number of people on the list have done things nobody would consider criminal, while acknowledging that child rapists are also on it, though not many. She said New Jersey, the state where Megan Kanka was murdered, did a study of whether the registry prevents crime and keeps kids safe from sexual assault, and found no difference before or after the registry. She contrasted the absence of registries for murderers, drug offenders, and others who hurt children and served their time, which she attributed to a belief that those people are proved rehabilitated, with the refusal to believe that anyone who committed any kind of sex crime can ever be rehabilitated. She said the number of people on the registry who go on to commit another sex crime is very small, and that the recidivism rate is about 5%, the lowest of any criminals except murderers. She said the assumption is that a list is needed because these are insatiable monsters, while the reality is that they are people like the rest of us, most of whom end up being okay and not criminal after serving their time.
The First Step Act and the medicalization of crime
In a 2019 episode with John McGinnis, Zadek called criminal justice reform an area that gives him great hope, describing it as somewhat bipartisan though in fits and starts Here Comes the Storm (2019). He said Rand Paul and Cory Booker were moving forward together, that Booker is quite on the left and had thrown his hat in the ring to be president, and that they joined forces with a very interesting first step in criminal justice reform. Zadek said government is the only organization in the country that can lawfully use force and the only one allowed to deprive people of liberty and property, which is why criminal justice reform matters. He said Donald Trump was not a moving force but signed the bill, the First Step, a small first step nonetheless, and asked whether McGinnis agreed that Trump deserved some credit.
McGinnis said he tended to think most presidents, Democrat or Republican, would have had it on their desk and almost all would have signed it, and that he was basically sympathetic and agreed it advances liberty. He noted a caution: the power to jail people or take their money is a core function of government, and some harsh criminal penalties were a response to substantial crime increases in the 1970s and 1980s that may have had their source in the decline of social norms. He said crime seems to have declined, that there have been excesses of those punishments, and that the most important thing is to punish criminals with certainty rather than give them sentences that put them into old-age homes. He applauded the bill but said he was not confident Trump was essential to it, unlike tax reform, which he said was surely written by the Ways and Means Committee but required Trump to be president rather than a Democrat.
In a 2019 episode with Theodore Dalrymple, Zadek raised the phrase that criminals are treated as ill and the ill are treated as criminals, saying it resonated because it had been the topic of many shows he had done on drug legalization and on wholesale incarceration and the high incarceration rate in the United States Theodore Dalrymple on Negligence and Unaccountability (2019). Dalrymple, who said he had been a doctor for a long time in a prison in Britain, described a therapeutic attitude toward criminality that he disagreed with, in which someone who acts criminally is said to be suffering from a disease and needs treatment. He said many criminals have half-adopted the attitude of regarding themselves as ill and not as agents, giving the example of saying they are addicted to stealing cars because they do it over and over and find it exciting, using a medical term for what they do and regarding themselves as vectors of forces rather than people with agency. He said they know in their hearts and between themselves that this is nonsense but get rewards for presenting themselves as if it were true, and that if you repeat a lie over and over again, it becomes true.
Across episodes: what changed
The excerpts show no development in the argument itself: the same question — whether the criminal justice system is overly punitive and where reform can actually happen — is raised in the 2017 Petersen episode, the 2017 Alt episode, and the 2019 McGinnis episode, with Petersen and Zadek advancing the drug-war critique, Alt and Zadek locating reform at the state level, and McGinnis adding a caution about certainty in punishment. The 2018 Skenazy episode and the 2019 Dalrymple episode extend the topic to registries and to the medicalization of criminality rather than revising the earlier positions.
What the sources do not cover
The excerpts do not state the contents or provisions of the First Step Act beyond its description as a small first step, nor the outcome of the Paul–Booker effort beyond its failure to advance. They do not give the legal basis for the registry decisions or the details of the New Jersey study beyond its finding of no difference before and after the registry. Bail reform and mens rea are named only in an episode overview, with no argument or detail from the speakers.